Article II of the U.S. Constitution gives the President the power to pardon individuals who have committed federal offenses.
The scope of the President’s pardon power is broad. He can pardon an individual for nearly any offense against the United States. While broad, the power is not unlimited. For example, the President cannot issue a pardon in cases of impeachment, nor can he pardon someone for committing a state crime.
The Constitution does not impose any procedural or substantive requirements on the President’s exercise of the pardon power. He can issue a pardon through any process and for any reason. Nonetheless, Presidents typically have relied upon the Office of the Pardon Attorney in the Department of Justice to vet and evaluate requests for a pardon. The Pardon Attorney, however, makes only a recommendation. The final decision on whether to issue a pardon rests with the President.
To request a pardon, an individual seeking a pardon submits a formal application to the Office of the Pardon Attorney. In evaluating the merit of each request, the Office of the Pardon Attorney considers various factors, including the person’s conduct following conviction, the seriousness of the offense, and the extent to which the individual has accepted responsibility for the crime. In addition, prosecutors who handled the case and the Deputy Attorney General – the second most senior official at DOJ – may weigh in on the recommendation about whether to grant a pardon.
The President, however, may choose to bypass the Pardon Attorney and grant a pardon in the absence of any such application or recommendation from the Department of Justice.
There are no limits to how many people the President may pardon. President Franklin D. Roosevelt, for example, pardoned 2,819 individuals during his time in office – more than any other President. President Barack Obama pardoned 212 individuals during his time in office.
A pardon completely wipes out the legal effect of a conviction. The recipient of the pardon is no longer considered a criminal and any collateral consequences of the conviction – such as the loss of the right to vote – are reversed.
From time to time, a presidential pardon may generate controversy. For example, Gerald Ford’s decision to pardon Richard Nixon after he resigned the presidency was heavily criticized at the time, and likely played a role in Ford’s electoral defeat in 1978. President Bill Clinton’s last-minute pardon of Marc Rich in 2001 was also heavily criticized after it was revealed that Rich’s wife had made large political donations.
The timing of President Clinton’s pardon – just before he left office – was not unique. Because a particular pardon may be politically unpopular, Presidents often choose to grant the pardons when they may not face political peril for doing so.
To learn more about corporate and executive criminal liability, follow us on LinkedIn. “Brilliant lawyers with courtroom savvy” – Benchmark Litigation. Copyright MoloLamken LLP 2018.